People v. Lopez

• Citation: 514 N.Y.S.2d 353,127 A.D.2d 234
• Parties: The PEOPLE of the State of New York, Respondent, v. Benito LOPEZ, Defendant-Appellant.
• Decision Date: 23 April 1987
• Court: New York Supreme Court Appellate Division

Page 353

514 N.Y.S.2d 353

127 A.D.2d 234

The PEOPLE of the State of New York, Respondent, v. Benito LOPEZ, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 23, 1987.

Bruce J. Cohen, New York City, for defendant-appellant.

Laura Barnhill, of counsel (Norman Barclay with her on the brief; Robert M. Morgenthau, Dist. Atty., New York City, attorney) for respondent.

Before SANDLER, J.P., and ROSS, ASCH, KASSAL and WALLACH, JJ.

ASCH, Justice.

The facts are essentially those set forth in the dissent. As the dissent correctly states, the defendant initially gave answers in the plea allocution inconsistent with his plea. He denied that he had intended to cause serious physical injury to the deceased, a required element of manslaughter in the first degree. He also raised the claim of self-defense. However, the further inquiry pursued by the court as to the circumstances of the commission of the crime clearly established the essential elements of manslaughter in the first degree (see, People v. Serrano, 15 N.Y.2d 304, 308, 258 N.Y.S.2d 386, 206 N.E.2d 330).

In the course of the allocution, the court asked defendant where he stabbed the deceased. He received the response, "Close to the heart." The court further asked defendant, "just before you plunged your knife into Herbert William Baxley, did you have an opportunity to leave the area without being molested?" The defendant equivocated, "It was out on the street. There was a lot of people around us." The court persisted, "Did anybody prevent you from leaving the scene?" and defendant answered, "No, I wasn't being held or anything." In a further attempt to clarify that self-defense was not a viable issue, the court then queried, "Were you free to leave?" The defendant at this point asked to speak with his attorney. After a conference, he responded to the question as to whether he was free to leave the area by answering, "Yes, Your Honor, I guess I was."

This further inquiry laid to rest any doubt as to defendant's intent to cause serious physical injury since he admitted stabbing the deceased in the chest near the heart. It also negated any possible defense of justification since defendant admitted he was free to leave at the time of the stabbing.

The dissent asserts that defendant denied having the intent to cause serious physical injury and it raises the issue of self-defense by relying on defendant's statements that he wanted to stop the deceased from coming toward him, that he feared for his life. However, as we have noted in a prior case:

[F]rom his own admission that he fired three shots at the victim, one could readily infer an intent to commit murder. In a similar case, involving a plea also, where it was claimed that the defendant's admissions did not show an intent to inflict serious physical injury, this court noted "To convict it is not necessary that there should be an explicit admission of such intent as distinct from a finding. Here the acts themselves bespeak the intent" (People v Castro, 44 AD2d 808 , aff'd 37 NY2d 818 [376 N.Y.S.2d 922, 339 N.E.2d 620] ). Likewise, in this case, defendant's acts bespeak the intent. Where the record shows that the defendant "admitted committing the acts alleged and his intent" (to commit the crime to which he pleaded) "is 'readily inferable' from his statements regarding the circumstance of the crime" (People v McGowen, 42 NY2d 905, 906 [397 N.Y.S.2d 993, 366 N.E.2d 1347] ), the court is under no duty to make any further inquiry.

(People v. Pascale, 66 A.D.2d 653, 654, 410 N.Y.S.2d 818, affd. 48 N.Y.2d 997, 425 N.Y.S.2d 547, 401 N.E.2d 904.)

Likewise, here the elements of the crime, although not admitted specifically by defendant in an explicit statement, did appear clearly from his recital of the facts (see, People v. Serrano, supra, 15 N.Y.2d p. 309-310, 258 N.Y.S.2d 386, 206 N.E.2d 330).

Even if the court had not made this further inquiry establishing all the elements of the pleaded crime, including intent to cause serious physical injury and lack of justification, defendant did not move to withdraw his plea or raise the issue in the court of first instance. Therefore, he has waived it as a matter of law, and, under the circumstances, we choose not to exercise our discretionary power to review any alleged error in the allocution.

In People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330, the Court of Appeals held that where defendant's own statements should alert the trial court to the insufficiency of a guilty plea, there was no need for defendant to interpose a motion to withdraw that plea, unlike the situation where nonrecord facts are said to undermine the validity of a plea ( ibid., p. 309, 258 N.Y.S.2d 386, 206 N.E.2d 330).

Thereafter, however, in a case where defendant sought to vacate a guilty plea, upon appeal, based on a claim that the elements of the crime were not clearly spelled out in the statements he made to the court at the time he entered his plea (substantially the facts herein), the Court of Appeals expressly held: "Not having raised the issue by motion to vacate or otherwise in the court of first instance, no error has been preserved for review [citations omitted]." (People v. Warren, 47 N.Y.2d 740, 741, 417 N.Y.S.2d 251, 390 N.E.2d 1175.)

Superficially, it is arguable that the better practice would be to allow an appeal as a matter of law whenever an invalidity is apparent from the record, without the necessity for a motion to withdraw the plea being made. However, under CPL 470.05(2), it appears that failure by the defendant to raise the issue at nisi prius will not preserve it for appellate review as a matter of law. This is a statutory expression of the black-letter rule that a party may not raise an issue for the first time in an appellate court. We, of course, retain our discretionary power, as an intermediate appellate court, to reverse in the interest of justice (CPL 470.15[3][c] ) in the appropriate case, where such an issue has not previously been raised.

On reflection, it seems to be better policy to apply CPL 470.05(2) and the general rule in appeals where an apparent invalidity is present on the record since defendant had not given the plea court notice of any objection or attempted to withdraw his plea. He has not given the trial court an opportunity to correct any problem, by presenting it to that court. Moreover, to allow a defendant to raise a claim of error appearing on the record for the first time on appeal would encourage him to take unfair advantage of the People in the hope that the passage of time will prejudice the People's case on any re-trial.

The requirement that a claim must be timely raised in order to create a question of law is grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings. Certainly, every defendant must be provided at least one opportunity to assert any defense or any claim that the proceedings against him are in some way tainted by a violation of the law. At the same time, the very real interest of the State in achieving finality in a criminal prosecution mandates that such objections be timely raised.

(People v. Michael, 48 N.Y.2d 1, 6, 420 N.Y.S.2d 371, 394 N.E.2d 1134.)

Of course, there are "narrowly drawn" exceptions to this general rule that a timely objection or request is necessary to create an issue reviewable as a matter of law, since "certain principles of law are deemed so fundamental to our criminal justice system that a claimed violation of those principles creates a question of law despite the failure to timely raise that claim in the courts below [citation omitted]." (People v. Michael, supra, p. 6, 420 N.Y.S.2d 371, 394 N.E.2d 1134.)

However, even constitutional issues have been held to be subject to forfeiture if not timely raised. These include statements taken in violation of defendant's right to be secure in his person against unreasonable seizure (People v. Patterson, 53 N.Y.2d 829, 440 N.Y.S.2d 172, 422 N.E.2d 817) or Miranda warnings (People v. Booker, 49 N.Y.2d 989, 429 N.Y.S.2d 168, 406 N.E.2d 1062), and physical evidence seized following a warrantless entry (People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363). Also, the right to speedy trial may be deemed waived by failure to timely object (People v. Lieberman, 47 N.Y.2d 931, 419 N.Y.S.2d 946, 393 N.E.2d 1019).

The Court of Appeals has apparently indicated that the issue presented herein is still an "open" one. Thus, in a footnote, they say:

People v Francis (38 NY2d 150 [379 N.Y.S.2d 21, 341 N.E.2d 540] ); People v Beasley (25 NY2d 483 [307 N.Y.S.2d 39, 255 N.E.2d 239] ); and People v Serrano (15 NY2d 304 [258 N.Y.S.2d 386, 206 N.E.2d 330] ) all hold that where defendant's responses alert the court to the insufficiency of his guilty plea defendant's failure to move to withdraw the plea does not foreclose consideration of the issue on appeal. ... If, however, Claudio 's broader statement (People v Claudio, 64 NY2d 858 [487 N.Y.S.2d 318, 476 N.E.2d 644] ) be deemed to bar direct appeal because the issue was not preserved collateral review is, nonetheless, barred....

(People v. Cooks, 67 N.Y.2d 100, 103, n. 1, 500 N.Y.S.2d 503, 491 N.E.2d 676.) The Court of Appeals, in this footnote, simply referred to the seemingly disparate case law and in the text of the opinion noted, "[w]e need not on the present record attempt to reconcile the language of the cases...." (People v. Cooks, supra, p. 103, 500 N.Y.S.2d 503, 491 N.E.2d 676.)

However, in People v. Claudio (supra ), decided after the other cited cases in the footnote, the court reiterated the rule that defendant's argument as to the validity of his guilty plea is not preserved for appellate review because he neither moved to withdraw the plea before sentencing nor raised the issue by a motion to vacate the judgment of conviction.

Defendant is, in effect, a...